VIRGINIA UPL OPINION 125

In acquiring property by deed, the Virginia Department of Transportation has for years used a form deed prepared by the Attorney General’s Office.Department employees fill in the description of the property being acquired — a description not taken from the deed book, but a technical description based on a survey of the needed right-of-way which references station numbers along a highway plat which is attached to and recorded with the deed conveying the property.

Prior to preparing a deed, Department employees also prepare option agreements, using a form prepared by the Office of the Attorney General, again filling in the technical description of the property in the Option Agreement.This Agreement is sent to the property-owner(s) at the conclusion of negotiations as part of the Department’s offer for the property.If the option is executed by the property-owner(s), a deed is prepared.

If the landowner rejects the Department’s offer for the property, a Certificate of Take/Deposit is filed with the Clerk, which is recorded in the deed book.This Certificate contains a technical description of the property (same description as the Option Agreement) being acquired for the roadway and defeasible title to the property is transferred to the Commonwealth of Virginia upon recordation of the Certificate.See § 33.1-119 et seq. of the Code.

All of these documents are prepared by employees of the Virginia Department of Transportation (using forms prepared by the Office of the Attorney General), and are being performed for their ultimate employer, the Commonwealth of Virginia.

Finally, because of the increased workload resulting from the Governor’s transportation initiatives, the Department of Transportation has hired consultants to accomplish appraising, negotiating, and relocation assistance work for the Department.You inquire if it would constitute the unauthorized practice of law for these consultants to likewise perform these document preparation services for the Department.

The employees of the Department of Transportation do not, in the Committee’s opinion, engage in the unauthorized practice of law by filling in the option agreements or the Certificates prepared by them in their capacity as employees.Part 6, Section I (B)(2) of the Rules of the Supreme Court of Virginia provides that one is deemed to be practicing law whenever:

“One, other than as a regular employee acting for his employer, undertakes, with or without compensation, to prepare for another legal instruments of any character, other than notices or contracts incident to the regular course of conducting a licensed business.???

Under this definition, Department employees would be allowed to prepare the documents discussed.

The question of consultants being allowed to perform the same functions seems to turn on whether or not they are regular employees acting for their employer.If they are, clearly their document preparation activities would be allowed as in Part 6, Section I (B)(2) of the Rules of Court.

It is the Committee’s further opinion that such employees may insert the property description as noted without engaging in the unauthorized practice of law.